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RIAA Litigation May Be Unconstitutional 281

Posted by timothy
from the what-about-ritchie-chaz-and-margot? dept.
dtjohnson writes "A Harvard law school professor has submitted arguments on behalf of Joel Tenenbaum in RIAA v. Tenenbaum in which Professor Charles Nesson claims that the underlying law that the RIAA uses is actually a criminal, rather than civil, statute and is therefore unconstitutional. According to this article, 'Nesson charges that the federal law is essentially a criminal statute in that it seeks to punish violators with minimum statutory penalties far in excess of actual damages. The market value of a song is 99 cents on iTunes; of seven songs, $6.93. Yet the statutory damages are a minimum of $750 per song, escalating to as much as $150,000 per song for infringement "committed willfully."' If the law is a criminal statute, Neeson then claims that it violates the 5th and 8th amendments and is therefore unconstitutional. Litigation will take a while but this may be the end for RIAA litigation, at least until they can persuade Congress to pass a new law."
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RIAA Litigation May Be Unconstitutional

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  • wholly analogous (Score:5, Insightful)

    by Anonymous Coward on Wednesday October 29, 2008 @05:11PM (#25561903)

    Quote from TFA:
    " The law, Neeson writes, is âoewholly analagousâ to a law that provides the following regime for speeders: (1) a $750 fine for every mile over the speed limit, escalating to $150,000 per mile if the speeder knew he was speeding; (2) the fines are not publicized and few drivers know they exist; (3) enforcement not by the government but by a private police force that keeps the fines for itself and:

            that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body. "

    I be dead if the police troops act like RIAA does.

  • the sky may be blue, water may be wet, etc.

    • by SpeedyDX (1014595) <speedyphoenix@gm ... m minus language> on Wednesday October 29, 2008 @05:14PM (#25561941)

      the sky may be blue, water may be wet, etc.

      Well, it really depends on where you are. Didn't you watch the Olympics in Beijing? The sky there was gre... ... OH, you were being sarcastic. Heh. Clever.

    • Yeah, I agree. (Score:4, Interesting)

      by RustinHWright (1304191) on Wednesday October 29, 2008 @08:12PM (#25563911) Homepage Journal
      What I can't understand is why it's taken this long for somebody high profile to say this. Or has it? Hasn't Lessig raised this point? And if not, why not? How about all those other legal folks who have been fighting this? Seems to that we're missing something here since everything in TFA seemed entirely obvious to me and everybody I talked about this with from the time that the legislation was proposed.
      What makes this news? Is is something new in his analysis? Doesn't look that way.
      Is it something about his having more of an ability to get it addressed? And if so, something more concrete that "he's a lawyer at Harvard" is needed.
      Is this case an unusually good one to make a stand on, and if so why?

      This is a fun chance for ranting and all but why should we care?
      • Re: (Score:3, Insightful)

        by sumdumass (711423)

        What I can't understand is why it's taken this long for somebody high profile to say this. Or has it? Hasn't Lessig raised this point? And if not, why not? How about all those other legal folks who have been fighting this? Seems to that we're missing something here since everything in TFA seemed entirely obvious to me and everybody I talked about this with from the time that the legislation was proposed.

        Lessig isn't all that great of a legal mind. Sure, he is definably qualified, but this is the differen

  • Light on details. (Score:5, Interesting)

    by BitterOak (537666) on Wednesday October 29, 2008 @05:17PM (#25561987)
    I read the article, but it is rather light on details. Does anyone know if there is any case law or statute which holds that civil penalties can be considered criminal by virtue of the amount of the penalty? The argument seems to be that because the statutory damages are so huge that by that very fact the law becomes criminal rather than civil. What precisely is the basis for that conclusion? Is there any precedent for that reasoning?
    • Re:Light on details. (Score:5, Informative)

      by technobabblingfool (1133901) on Wednesday October 29, 2008 @05:34PM (#25562205)
      Does anyone know if there is any case law or statute which holds that civil penalties can be considered criminal by virtue of the amount of the penalty?

      In a criminal statute, the common feature is a severe punishment for failure to comply. The punishments can include imprisonment, execution, fines, etc. In a civil statute, one party seeks compensation for 'damages' that have been incurred at the hands of the other party. The argument is that the law that the RIAA uses has such severe penalties that are so far beyond the 'damages' that the law itself is really a criminal statute seeking to punish the wrongdoer for failing to comply rather than awarding damages to the injured party.
      • Re:Light on details. (Score:5, Informative)

        by BitterOak (537666) on Wednesday October 29, 2008 @06:24PM (#25562769)

        In a civil statute, one party seeks compensation for 'damages' that have been incurred at the hands of the other party. The argument is that the law that the RIAA uses has such severe penalties that are so far beyond the 'damages' that the law itself is really a criminal statute seeking to punish the wrongdoer for failing to comply rather than awarding damages to the injured party.

        Actually, civil judgements can include punitive damages as well as actual damages, and punitive damages, by their very definition are in excess of the amount of injury suffered by the plaintiff. The idea is to serve as a deterrent to others who might engage in similar conduct. I was asking if there is any precedent in case law for classifying civil cases as criminal cases based solely on the amount of damages assessed. In other words, is this idea just some new theory that this law professor cooked up, or is there case law to back it up?

        • Re:Light on details. (Score:4, Interesting)

          by absoluteflatness (913952) <absoluteflatness@@@gmail...com> on Wednesday October 29, 2008 @06:37PM (#25562911)

          Even though this tactic seems pretty unlikely to succeed, the issue that's being pointed out seems to be that the statutory damages are so high.

          Punitive damages can be sky-high, but I don't think that the RIAA generally seeks them.

          • Re: (Score:3, Interesting)

            by sumdumass (711423)

            Your right. And the big differences here are that the judge decides the punitive amount based on several things that is discovered during the trial. The current law allows the hugely punitive fines or damages from the get go and doesn't separate the two.

            I guess the distinction is that you can end up with the same results but damages need to be in line with the damages and anything punitive needs the full and complete oversight of a competent judge rather then being built into a right of the law. And when it

        • by TubeSteak (669689)

          Actually, civil judgements can include punitive damages as well as actual damages, and punitive damages, by their very definition are in excess of the amount of injury suffered by the plaintiff.

          I don't think statutory damages are supposed to be punitive.
          Punitive damages are something extra that you sue for, in addition to being made whole.

          • Re: (Score:3, Insightful)

            by ethergear (1130483)

            I don't think statutory damages are supposed to be punitive. Punitive damages are something extra that you sue for, in addition to being made whole.

            Right. The contention here is that the statutory damages in question, $750 per song, are so large as to be punitive.

        • Re:Light on details. (Score:5, Informative)

          by Kjella (173770) on Wednesday October 29, 2008 @07:30PM (#25563517) Homepage

          In other words, is this idea just some new theory that this law professor cooked up, or is there case law to back it up?

          Well, according to Wikipedia:

          In response to judges and juries which award high punitive damages verdicts, the Supreme Court of the United States has made several decisions which limit awards of punitive damages through the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In a number of cases, the Court has indicated that a 4:1 ratio between punitive and compensatory damages is broad enough to lead to a finding of constitutional impropriety, and that any ratio of 10:1 or higher is almost certainly unconstitutional.

          And there seems to be the most relevant case here:
          http://en.wikipedia.org/wiki/BMW_of_North_America,_Inc._v._Gore [wikipedia.org]

          The majority decision there (and it's a 5-4 decision so a close call anyway) is much less clear:

          In Haslip we concluded that even though a punitive damages award of "more than 4 times the amount of compensatory damages," might be "close to the line," it did not "cross the line into the area of constitutional impropriety." TXO, following dicta in Haslip, refined this analysis by confirming that the proper inquiry is "`whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred.'". Thus, in upholding the $10 million award in TXO, we relied on the difference between that figure and the harm to the victim that would have ensued if the tortious plan had succeeded. That difference suggested that the relevant ratio was not more than 10 to 1.

          The $2 million in punitive damages awarded to Dr. Gore by the Alabama Supreme Court is 500 times the amount of his actual harm as determined by the jury. Moreover, there is no suggestion that Dr. Gore or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure policy. The disparity in this case is thus dramatically greater than those considered in Haslip and TXO.

          Of course, we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award. Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. It is appropriate, therefore, to reiterate our rejection of a categorical approach. Once again, "we return to what we said... in Haslip: `We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that [a] general concer[n] of reasonableness... properly enter[s] into the constitutional calculus.'". In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis. When the ratio is a breathtaking 500 to 1, however, the award must surely "raise a suspicious judicial eyebrow.".

          In short, the court has rejected 500:1 before, said 10:1 is ok but left itself a wide playing field. The court could easily hold that for $5 noone would able able to seek compensation so much, much higher ratios are acceptable. And between 1996 and now, they may even reject the idea of touching punitative damages at all. It's not a lost case either but it's definately way in the gray.

    • Re:Light on details. (Score:5, Informative)

      by Bazzargh (39195) on Wednesday October 29, 2008 @06:32PM (#25562873)

      The motion itself has this:

      As stated by the Supreme Court in Int'l Union v. Bagwell, 512 U.S.
      821 (1994), distinguishing criminal from civil contempt, a
      "flat, unconditional fine" totaling even as little as $50.00
      announced after a finding of contempt is criminal if the
      contemnor has no subsequent opportunity to reduce or avoid the
      fine." Id., at 829.

      Thats the only precedent they site in support of this part of the argument
        - there's a heck of a lot more to support their argument that the RIAA
      are abusing the courts. But this one claim seems pretty thin.

      However that case was about civil versus criminal /contempt/ fines,
      and pretty much all the cases citing it seem to be about contempt [google.com].
      IANAL, but it looks like even this precedent might be a bit of a reach.
      Good luck to them though :)

    • Re: (Score:3, Interesting)

      by taustin (171655)

      I don't recall any details, but there is a SCOTUS ruling that civil forfeiture laws (in this case, seizing several hundred thousand dollars for violating import laws requiring the declaration of money) were, in fact, criminal penalties, and thus subject to the constitutional restrictions on excessive fines.

    • by Eskarel (565631) on Wednesday October 29, 2008 @07:09PM (#25563277)
      I think it's more a case of "if it looks like a duck, walks like a duck, and quacks like a duck, it's a duck" than actual case law.

      Civil suits are based on actual damages and you must prove actual damages before you can even proceed with a civil case in most cases. There can be a punitive component, but it's used primarily for cases where the defendent was willfully negligent, and, like the actual damages, is up to the jury to decide). The plaintiff in a civil trial also does not have the same procedures available to them for the purposes of evidence gathering. Generally the FBI will not prosecute a warrant to gather evidence for a civil trial.

      Criminal cases on the other hand involve the violation of law, impose government mandated fines, and often involve forced search and siezure for the purposes of evidence gathering. Actual damages are unimportant in a criminal trial and do not have to be proven.

      As far as I can see the RIAA lawsuits look a heck of a lot more like the second than the first. About the only difference between an RIAA lawsuit and a real criminal trial is that the defendent in a RIAA lawsuit has fewer rights and once the jury has decided guilt they decide the punishment rather than a judge.

      So from this analysis(and from TFA) it appears very much that the RIAA is criminally prosecuting people without giving them any of the rights associated with a criminal trial(proof beyond a reasonable doubt, ethical requirements for investigators, double jeopardy, and a free lawyer facing a prosecutor instead of a whole team of viscious land sharks.

      If this is indeed the case, and I'm certainly beginning to believe it is, then it's not only a travesty of justice, but decidedly unconstitutional.

  • It Never Ends (Score:5, Interesting)

    by sexconker (1179573) on Wednesday October 29, 2008 @05:20PM (#25562005)

    How many times have I heard about a be-all end-all case where the RIAA/MPAA/etc has lost, been laughed by a judge, had a precedent set against them, etc.?

    They'll continue to sue.

    Nothing will stop them.

    • Quite right, the tossers are fighting for their very lives. They'll only stop when their wedge runs out.

      Unlimited coke & whores is a mighty fine motivator.
    • Re:It Never Ends (Score:5, Insightful)

      by moosesocks (264553) on Wednesday October 29, 2008 @05:33PM (#25562199) Homepage

      They'll continue to sue.

      Nothing will stop them.

      The DoJ or Supreme Court certainly could.

      Why aren't any racketeering/trustbusting laws coming into play here? The actions of the RIAA/MPAA are increasingly resembling those of a band of criminals.

      • Re:It Never Ends (Score:5, Insightful)

        by pak9rabid (1011935) on Wednesday October 29, 2008 @06:18PM (#25562715)

        Why aren't any racketeering/trustbusting laws coming into play here? The actions of the RIAA/MPAA are increasingly resembling those of a band of criminals.

        As are the actions of a good chunk of our congressmen.

        • Re: (Score:3, Insightful)

          by jc42 (318812)

          One of my favorite Mark Twain quotes is "There is no distinctly native American criminal class except Congress."

          Of course, it can be difficult to prosecute criminals who are in charge of writing the laws and determining the pay of judges.

      • by nurb432 (527695)

        The DoJ or Supreme Court certainly could.

        Why aren't any racketeering/trustbusting laws coming into play here? The actions of the RIAA/MPAA are increasingly resembling those of a band of criminals.

        Because they have paid up their congressional protection fees.

      • by db32 (862117)
        Pause...think...slowly...

        The actions of the RIAA/MPAA are increasingly resembling those of a band of criminals.

        s/RIAA\/MPAA/government

        That is why. Seriously...let us look at one of the many ways our DoJ has acted. When facing the law that says: ""torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or ph
  • No Attorney (Score:5, Interesting)

    by arizwebfoot (1228544) * on Wednesday October 29, 2008 @05:24PM (#25562057)
    I'm not an attorney, but somehow this doesn't seem like it's gonna fly. The law was not codified as criminal, and thusly lies the fatal flaw in TFA.
    Congress has many times passed laws which were punitive without being criminal. For example, the Fair Debt Collection Practices Act (FDCPA) has punitive statutory damages in it.

    I just don't think the argument will eventually hold much water, wish it held enough to float a battleship, but alas, I don't think so.
    • Re: (Score:3, Interesting)

      by MarkvW (1037596)

      The labeling matters not a bit. The criminal/civil distinction turns entirely on matters of substance, not form. This is noncontroversial.

    • IANAL, but it seems to me that the standard of proof for criminal penalties is reasonable doubt, for civil penalties it is preponderance of evidence. That is the distinction that appears to be made.
  • I've heard that Joel Tenenbaum has stomach cancer so this won't matter. He's dying. Well, he's not dying. Except that he's dying.

  • Ya don't say.. (Score:5, Interesting)

    by QuantumG (50515) * <qg@biodome.org> on Wednesday October 29, 2008 @05:31PM (#25562151) Homepage Journal

    Current copyright practice violates every amendment..

    1. [findlaw.com] Used to quash free speech.
    2. [findlaw.com] We need a violent overthrow of the RIAA.
    3. [findlaw.com] The Sony root kit is like billeting soldiers on their war on copying in my house.
    4. [findlaw.com] They have no respect for my privacy and all their searches are unreasonable.
    5. [findlaw.com] They'd like you to believe that doing normal things with their products makes you a criminal.
    6. [findlaw.com] There's no due process in civil cases.
    7. [findlaw.com] The right to a jury trial in a civil matter is pointless, seeing as the judge instructs the jury to uphold the law even though the law is stupid and everyone knows it.
    8. [findlaw.com] Oh, that's what the article is about, excessive stupidity.
    9. [findlaw.com] like, say, the right to use my copy machines to copy whatever the fuck I want.
    10. [findlaw.com] redundant much?
    11. [findlaw.com] The TRIPS agreement and the Berne Convention are examples.
    12. [findlaw.com] Lobbying undermines.
    13. [findlaw.com] Without freedom to copy, we're all slaves.
    14. [findlaw.com] Lobbying.
    15. [findlaw.com] Criminal copyright infringement convictions (wtf? When did that happen?) means you can't vote.
    16. [findlaw.com] No property tax for copyright?
    17. [findlaw.com] Lobbying.
    18. [findlaw.com] You have to be drunk to understand copyright law.
    19. [findlaw.com] umm... err.. Lobbying, yeah.
    20. [findlaw.com]Lobbying.
    21. [findlaw.com]See 18.
    22. [findlaw.com]Lobbying.
    23. [findlaw.com]Lobbying.
    24. [findlaw.com]Lobbying.
    25. [findlaw.com]Lobbying.
    26. [findlaw.com]Lobbying.
    27. [findlaw.com]Did I mention Lobbying?

  • NESSON (Score:5, Informative)

    by torstenvl (769732) on Wednesday October 29, 2008 @05:32PM (#25562165)

    His name is Charles Nesson, not Charles Neeson.

    I would know. He's my professor.

  • The other side (Score:3, Interesting)

    by dracocat (554744) on Wednesday October 29, 2008 @05:33PM (#25562193)

    While I hope they succeed in eliminating this law for good, there is another side to this.

    I think that congress is within its rights to set specific damages to things that are hard to place a value on. The OP says that damages should be 99 cents per song. How many people did that person share the song with? Does an average user share the song 1000 times?

    I think another analogy would be that of the Do Not Call registry. There is a specifc dollar amount that you can claim as damages. This is because it is hard to place a value on the time and annoyance the average person was caused by the phone call. So they place a set amount on it.

    Again, hope they suceed, but it isn't as cut and dry as we would all like to think.

    • Re: (Score:3, Informative)

      by MadUndergrad (950779)

      The OP says that damages should be 99 cents per song. How many people did that person share the song with? Does an average user share the song 1000 times?

      If the average user shares song X 1000 times, then the average user downloads song X 1000 times. Who the hell downloads a given song 1000 times? Most/all p2p is not streaming. They'd download it several times, tops. The average user thus only shares a given song maybe 2 or three times. Without proof to the contrary, that is what has to be assumed.

      • by dracocat (554744)
        Good point. Although I wonder what the average leach to uploader ratio is. How many people have installed a p2p client and have no idea how to open a port on their little router at their house to enable uploading?
      • by HTH NE1 (675604)

        If the average user shares song X 1000 times, then the average user downloads song X 1000 times. Who the hell downloads a given song 1000 times?

        That doesn't make sense. More like if the average user shares song X 1000 times, then the average user has an average of 1000 friends. So who the hell has a thousand friends? More like the artist has a thousand fans who like song X and download music. And they're still not likely to all download from one person.

      • by moxley (895517)

        I'd say nothing can be assumed when it comes to penalizing people for acts which no officer has witnessed and plantiffs cannot prove definitely occured (other than the copy which they themselves downloaded, which should be some form of entrapment), especially when you are talking about the sort of severe penalties they are.

        The problem here is that the way technology is trending (towards openness, decentralization) is heading opposite of the direction governments and laws are heading (towards more laws, rep

      • You conclusion is only valid if:

        - Users share/upload the same number of songs they download
        - Only one song exists.

        If there, were, for example, 1,000 different songs, each user could share/upload one song 1,000 times, and each user could download each of the 1,000 songs once.

        Not to mention that most users download more songs than they upload/share. So you could have one user upload/share a song 1,000 times, and have 1,000 users who downloaded the song once but didn't upload/share crap.

        • by Endo13 (1000782)

          Your points are only relevant if:

          - Anyone hosts any particular infringing item long enough for it to be downloaded 1,000 times.

          That doesn't happen even with music, let alone bigger things like software and movies. The most you can expect is for one person to upload it about 50 times, and those are the extreme cases. If that's the case, you will definitely see it on their upload usage. All you need to do is ask the ISP how much the upload exceeds the download.

      • 'Cause you just won one.

        If the average user shares song X 1000 times, then the average user downloads song X 1000 times. Who the hell downloads a given song 1000 times?

        Why are you assuming that the average user shares a song with only one person?

        • by Endo13 (1000782)

          Why are you assuming that the average user shares a song with only one person?

          How often does this have to be explained?? It's P2P. That means peer to peer. Something only gets uploaded when someone else downloads it. Since the average user downloads the average item one time, it's a valid assumption that the average user also uploads the average item one time. It's very simple math. You know, how +1 and -1 = 0?

  • by randalotto (1206870) on Wednesday October 29, 2008 @05:34PM (#25562209)
    For one, the guy's name is Nesson, not Neeson. Also, he is both incredibly brilliant, (one of the very few people to graduate summa cum laude from Harvard Law School,) and incredibly eccentric. He's the sort of guy who will give final exams in Second Life or let people create an original Youtube video instead of the traditional test. Here's his class's page about this whole issue: http://blogs.law.harvard.edu/cyberone/riaa/ [harvard.edu]
    • Good. We need more of those on the consumers' side. And maybe a gamer or two. We're all kinda saying that their crusade has to fall, but we haven't seen the shut-down proof yet. Something irrefutable and easy.

      Kinda like:
      (RIAA vs. Joseph Helviticus Schmoe, Esq.)
      Counsel for the defense:
      "Your honor, so we established these penalties per infringement, right?"
      "Yes"
      "Okay, So the 3,828 400 GB hard drives from Plaintiff which each have 27,000 infringing are in violation, right? Please ask Plaintiff to pay first. No

  • by MarkvW (1037596) on Wednesday October 29, 2008 @05:35PM (#25562219)

    I have had to deal with the civil/criminal distinction as it arises in cases involving contempt. Civil contempt must be remedial; if it is not remedial it is punitive; if it punitive, then the accused gets the full panoply of criminal due process.

    On the other hand, common-law punitive damages do not offend due process. But punitive damages are usually imposed by juries, based on individualized determinations, and limited by discretion. The copyright provisions are not individualized and provide for no discretion.

    Treble damages have also been held not to violate due process.

    This is a very interesting argument!

  • Persuading Congress (Score:2, Informative)

    by sjames (1099)

    If this leads where it SHOULD, it will take more than persuading Congress to get this hole in their plans patched. The theoretical new law would either have to provide for more like the actual value ($0.99) or treble damages if willful ($2.97).

    Anything else would be a HUGE uphill battle to amend the Constitution and would require buying off 3/4 of the state legislatures. Unlike typical Congressional bribery, they would have to pay enough for each legislator to retire to another country since such a move wou

    • by taustin (171655)

      Actually, what the *AA would need to do is what they are doing now: lobby Congress to make pretty much all copyright infringement criminal, with a federal law enforcement bureaucracy (copyright czar) to enforce and prosecute. This has been the IP's goal for some time, as it removes the cost of enforcement from the "victim" and places it on the public. Which is to say, they not only want to put you in prison for playing your own CD for your friends on your own stereo without a performance license, they want

  • Well, that shouldn't take too long given the propensity of previous Congresses, controlled by whichever party, to extend copyright, increase statutory damages, and generally do just about anything that the MAFIAA asks them to do. The only hope for consumers is that constitutional challenges to the existing copyright laws, probably brought within the context of the ongoing file sharing lawsuits (the Boston judge named in this [slashdot.org] story discussed previously on Slashdot has allowed at least one defendant to amend
  • This is an interesting argument, but there are other statutes which impose minimum damages, and these have generally been upheld.

    However, given the size of the damages here and the funds of the average defendant, perhaps the Court will find Congress has overstepped its bounds. I wouldn't count on it though, if this were to somehow succeed at trial and percolate up to the Supreme Court, the "pro-business" members of the bench would likely get a majority for reversal.
  • by westlake (615356) on Wednesday October 29, 2008 @06:03PM (#25562521)
    The market value of a song is 99 cents on iTunes
    .

    But that song does not come with a license to redistribute.

    You cannot, without consequences, and as a charitable gesture, simply burn 10,000 copies and airdrop them onto a city park.

    Assume for the moment that a download could be tagged to its ultimate source - meaning you.

    Assume for the moment that traffic in that file could be monitored or estimated in a way that would be persuasive to a civil judge and jury.

    Where expert testimony is generally admissible and the burden of proof on the plaintiff is slight.

    The files you uploaded have been out there for months. Do you really, really want the damages to be assessed at 99 cents a track?

    As compensatory damages - which are generally unlimited?

    • Re: (Score:3, Insightful)

      by Endo13 (1000782)

      As has been pointed out before in the comments here, with a direct P2P network, 1 upload = 1 download. If the average user downloads a song no more than 3 times, then the average user on that P2P network also uploads the song 3 times. We're not talking about one person hosting his music collection on a website for all to download. Those kinds of things have been shut down about as fast as they went up for years now. True, not everyone hosts everything they download, and some host it longer than others, but

      • by westlake (615356)
        As has been pointed out before in the comments here, with a direct P2P network, 1 upload = 1 download
        .

        If you upload a uniquely "tagged" or "watermarked" file to the P2P nets you are casting your fate to the winds.

        It no longer matters who references the file or who is using it as a seed. The search that returns twenty five hits for what is unmistakably the same "rip."

        24-7-365

        The rip that you unleashed into the wild.

        • Re: (Score:3, Insightful)

          by Endo13 (1000782)

          If the RIAA were going purely after the groups who do the initial rip and upload, you would have a point and there wouldn't be any controversy here. Everyone knows they deserve some fines for that. But that's not the case. The RIAA has been going after anyone they can get the hands on who 'presumably' helped upload the files. Some of the accused have been people who don't even own a computer and have never used the internet.

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      The files you uploaded have been out there for months. Do you really, really want the damages to be assessed at 99 cents a track?

      Yes. My personal copyright-violating collection of music currently contains 2418 tracks. Under the RIAA's theory of damage calculations, if they win a copyright-infringement case against me, the minimum damages are $1,813,500; the maximum is $362,700,000. Based on a price of $0.99 per track, the actual damages are $2393.82.

      Big difference.

  • From The Brief (Score:3, Insightful)

    by TechForensics (944258) on Wednesday October 29, 2008 @06:13PM (#25562643) Homepage Journal
    I had tears in my eyes when I finished reading this:

    The RIAA intimidates and steamrolls accused infringers into settling before they have their day in court and before the courts can weigh the merits of their defenses. The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say "stop."

  • At core his defenses and counterclaim raise a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs in the machine, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?

    The jury can decide the law sucks and needs to die, and command such. We allow a jury to preside over civil and criminal cases because it allows a random assortment of ordinary people to make judgment on the law. The people have spoken, the law sucks, remove it, end of story.

  • by 91degrees (207121) on Wednesday October 29, 2008 @06:46PM (#25563019) Journal
    "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

    Sounds to me that this is an excessive fine and the amendment applies whether it's criminal or civil. What am I missing here?
    • Re: (Score:3, Insightful)

      by DeanFox (729620) *

      and the amendment applies whether it's criminal or civil. What am I missing here?

      What you're missing is the 'So What?'. A lot of things are unconstitutional. The first that comes to mind is drug forfeiture. If I'm driving down the highway and get stopped and have what the officer considers too much money he takes it. I forfeit all my money unless I can prove it's not drug related. If they steal up to 20-30 thousand it's essentially gone due to the high cost of attorneys fees to get it back.

      Then there's the stop in the first place. I've watched the television show COPS and heard an o

  • Yup, except there are federal laws that come in to play if you reach a threshold, which is why i think they go for such ludicrous amounts.

    But the point will all be moot soon anyway, as they are slowly buying the laws they need to shift it from civil to criminal.

  • by zerofoo (262795) on Wednesday October 29, 2008 @09:42PM (#25564631)

    I see too many comments here equating the damages to the number of times the song was shared. This equation is flawed at best.

    How many people would have bought the item if they did not download it? The number is somewhere between none and all, but where exactly is it?

    If an item is shared 10,000 times, are there really 10,000 instances of "damage" - or lost revenue? Worse yet for this argument; if a file-sharer is exposed to something new and then decides to purchase the song, or attend a concert, the activity has a beneficial result.

    The entire problem with the RIAA and the law is that there is no reasonable way to estimate damages when NON-COMMERCIAL copyright infringement exists.

    -ted

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